Double Standard: Legislators Close Their Own Ethics Trials
This is reprinted by permission from The News & Observer of Raleigh
North Carolina's new government ethics reforms include a key feature no state legislator wants credit for: secret trials.
When legislators or state employees are suspected of misconduct in office, most, if not all, of the investigation will be kept out of public view -- even after a preliminary inquiry substantiates the allegation. Official charges, the accused's response and ethics hearings are to be confidential.
Misconduct by an elected official would come to light only if the Legislative Ethics Committee referred the case to the legislator's chamber for discipline. Violations by state workers would remain forever concealed unless their agency chose to disclose them.
That secrecy is a striking departure from the way other state agencies treat North Carolina's thousands of lawyers, doctors, elected judges and political candidates. All are subject to public trials on formal misconduct charges. Tens of thousands of private, licensed professionals -- from psychologists to grain dealers and pawnbrokers -- also face public hearings when accused of misconduct on the job.
The General Assembly wrote the special rules for itself last year despite declaring in the 43-page law that "self-interest, partiality, and prejudice have no place in decision-making for the public good."
Some legislators say they need extra protection because they're more vulnerable to political attacks based on false allegations.
"We live in a different world," said House Minority Leader Paul "Skip" Stam, a Republican Apex lawyer and member of the Legislative Ethics Committee. "We can be impeached. We can be terminated every two years by the voters. Unless there's an obvious error, I'd like to see how things work before we change them."
But the double standard has critics calling for a quick fix. They favor opening state ethics cases to the public at a middle stage: as soon as a preliminary inquiry substantiates complaints but before a formal disciplinary hearing.
"That's the way it ought to be," said Robert Farmer, chairman of the new State Ethics Commission and a former elected judge. "It concerns me. I just feel like the public ought to know what's going on in government."
House and Senate leaders said they will reconsider the secrecy.
"It's probably one of the things we'll go back and reopen," Sen. Dan Clodfelter, a Charlotte Democrat and lawyer, told The News & Observer. "Now that you've raised the question, it's on our list of things to revisit."
'Keeping Them Honest'
Clodfelter said the confidentiality provisions got little attention amid vigorous debates on other issues. The revised secrecy rules passed with the rest of the bill 109-1 in the House and 46-1 in the Senate. Only Republican Rep. John Rhodes of Cornelius and Republican Sen. Hugh Webster of Burlington voted against the bill, saying it failed to address real problems at the legislature. Webster said last week that the reforms were a sham to give disgraced former House Speaker Jim Black cover.
"It should be open to the public," he said of the new Legislative Ethics Committee. "That's our only chance of keeping them honest."
Democrats control both chambers of the General Assembly, but leading legislators say no member of either party objected to the secrecy rules.
Last year, Gov. Mike Easley, a Democrat, proposed making ethics charges and hearings public. The governor still prefers it that way and expects the legislature to reconsider, spokeswoman Renee Hoffman said.
Easley and Farmer aren't alone in favoring more openness.
Closing disciplinary proceedings can breed public distrust in the results, said Alan Schneider, a Raleigh lawyer who often defends doctors and lawyers against misconduct charges.
Opening investigations midway, he said, strikes a balance between protecting the accused against frivolous complaints and preserving the public's right to know.
With disparate rules for legislators, "there are those who would question why a different standard of public access exists," Schneider said. "Licensed professionals could question why their disciplinary case becomes a matter of public record before a determination of wrongdoing when the legislators appear to be exempt from the same level of public scrutiny."
None of the half-dozen legislative leaders interviewed for this story could say how granting themselves greater secrecy serves the public's interest.
So what are they afraid of?
Each other, it seems.
Watching Their Own Backs
Several said legislators worry that publicizing baseless complaints would encourage more and give election opponents unfair ammunition.
"We're a political body," said Senate leader Marc Basnight, a Manteo Democrat. "When you've got a candidate running against you, he can offer a charge and it can be false. You'll write about that quickly whether there's any foundation. That's a pretty powerful tool to use against the candidate."
That is also a risk for elected district attorneys and judges, who by law are subject to greater disclosure. And it doesn't take into account that, under the proposal Farmer favors, only substantiated allegations would be disclosed.
Advocates for openness argue that elected officials should face more scrutiny than private professionals, not less, since they are directly accountable to the public.
"If you have transparency, you'll get a better, fairer, more honest process," said Bob Phillips, executive director of N.C. Common Cause, a nonprofit advocacy group that pushed for the ethics reforms.
For decades, that's also the approach the state has taken with its doctors, lawyers and political candidates. For them, formal charges are public.
"It's not just rumor or innuendo -- you've got public servants who are being formally charged by a state agency with misconduct in office," said Paul Ross, executive secretary of the state Judicial Standards Commission, which investigates judges. "At that point, it's in the public's best interest to open it up. It's something the public ought to know about."
Clouding the Process
For the thousands of workers in executive branch agencies and institutions, the new law provides the greatest secrecy in decades. For the past 30 years, investigative hearings of the former State Ethics Board, which supervised executive-branch officials, were open. Now they will be closed.
It will be possible for state workers to be investigated, charged, found guilty and fired for serious misconduct in office without the public ever knowing. The decision to disclose is left to the agency.
State legislators found guilty of misconduct could escape with only a "private admonishment" free of any public disclosure. In the most egregious cases, they could be sanctioned publicly by their legislative chamber. Such sanctions are exceedingly rare -- the most recent one was 11 years ago.
The confidentiality rules apply to the State Ethics Commission, which oversees executive-branch workers, and the joint Legislative Ethics Committee, a bipartisan group of legislators who police themselves and their colleagues.
One of the bill's main sponsors said the secrecy is no big deal compared to the advantages of new rules on officials' conduct, lobbying, campaign fundraising and financial disclosures.
"Your questions are about very minor issues," said Rep. Paul Luebke, a Durham Democrat and university professor. "Part of the compromise in selling this to a majority was to say, 'We'll keep it confidential to a point.' I think that's a reasonable compromise."
Clodfelter said the proposed rules for investigating state legislators and agency workers were modified to match what had been done before with legislators, when hearings were closed.
In 1996, the House censured Rep. Ken Miller, a Mebane Republican, after hearing secret testimony from a 16-year-old page who had refused to talk publicly about the lawmaker's sexual advances toward her. It was the body's first disciplining of a member in more than 100 years.
House Speaker Joe Hackney, a Chapel Hill Democrat and a lawyer, said he thinks the General Assembly probably should reconsider whether the secrecy allowed under the new law is appropriate.
Going further, Republican Rep. John Blust of Greensboro is calling for the opening of all legislative ethics investigations to the public.
"I think they've rendered 'legislative ethics' an oxymoron," said Blust, a lawyer and accountant. "As long as it's not public, it creates suspicion. Sunshine is the best way to have accountability."
And yet other Tar Heel legislators remained concerned about their political survival amid today's fierce partisan battling.
Rep. Julia Howard, a Mocksville Republican and Realtor who oversaw Miller's censure, called the secrecy "a touchy situation."
"I'm very comfortable as it stands, unless there's a proven reason to make it different," Howard said. "Don't compare it to doctors and lawyers and da da da da da. They don't have to stand for election, most of them.
"Tell me if it's broke."
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